Mr. Speaker, I am pleased to rise today to speak to Motion No. M-79 introduced by my hon. colleague, the member for St. Albert. It proposes that appointees and potential appointees to the Supreme Court of Canada should receive parliamentary scrutiny.
I take exception to the suggestion from the hon. member that if members on this side do not agree with him, we are therefore succumbing to the influence of the Prime Minister or that we are not acting independently or whatever. I wonder if it occurs to him that that kind of suggestion is itself undemocratic. Suggesting that we must agree with him or else we are making decisions for the wrong reason is entirely undemocratic. It is a remarkable comment coming from someone who puts himself forward as someone who believes strongly in democracy. It is not very democratic in itself.
The motion further proposes that Standing Orders 110 and 111 of the House of Commons should be amended to include such appointees and potential appointees.
I would like to start with a quote from the Prime Minister:
The Supreme Court of Canada plays a fundamental role in our democratic society, in particular as the ultimate guardian of the values entrenched in the Canadian Charter of Rights and Freedoms—
It is therefore essential for its members to be selected from among the most distinguished and most competent of jurists.
The current appointment process for Supreme Court judges, including that of the chief justice, is based on over 130 years of tradition and precedence and has been successful in achieving those very results that I spoke of a moment ago, and reiterated by the Prime Minister. It is true that the executive has discretion in the selection and appointment of Supreme Court justices.
Supreme Court appointments are made after extensive consultations between the Minister of Justice and senior judges, solicitors general, representatives and senior members of bar associations, provincial governments and other well informed individuals in the region where the candidate selection must take place.
Merit is the sole element taken into consideration when a Supreme Court justice is selected. Again in the words of the Prime Minister:
The proposed candidate must be held in the highest esteem by the legal community.
In making appointment decisions, qualities such as outstanding intellectual capacity, superior ability in judgment writing, the capacity for innovative thinking on emerging legal issues, and a demonstrated sensitivity to the diverse values contained in the charter are sought. These criteria, coupled with the traditional consultation process with respect to appointments to the Supreme Court of Canada, have proved highly successful in producing judges of the greatest distinction and ability for the court.
The quality of appointments to this court over the past three decades has received almost universal praise. From what I have seen of the U.S. experience it would seem to indicate that confirmation hearings achieve little in improving the quality of appointments to that nation's supreme court.
If we adopt an approval process that is similar to that of the Americans, we risk politicizing the appointment of judges, and this would not be in Canadians' best interest. We must approach these proposals with caution, therefore.
Providing for parliamentary scrutiny of appointments to the Supreme Court could deter some excellent candidates because of the ordeal of public and potentially partisan hearings. This for me is a serious and sincere concern. As the learned scholar Ed Ratushny observed:
...a prominent feature of many U.S. confirmation hearings has been personal attacks on nominees without respect for their dignity as human beings, let alone as Supreme Court judges.
Clarence Thomas said after his confirmation hearing:
If someone wanted to block me because they don't like the composition of the Court, that's fine. But to destroy me--I would have preferred an assassin's bullet to this kind of living hell that they have put me and my family through.
Scrutiny of these appointments would also impose constraints upon a government seeking to appoint a Supreme Court judge whose excellence as a jurist and as a person is universally acclaimed.
As well, care should be taken to ensure that any proposal for parliamentary scrutiny of court appointments does not undermine the independence of the judiciary.
Our judicial appointments system ensures the independence of the judiciary. Judges hold office doing good behaviour; judges enjoy certain legal immunities for anything they say or do in court; and only in rare cases would an inquiry be launched that would lead to the removal of a judge.
We must therefore, for all these reasons, be cautious when considering any changes to the appointment of judges.